Obama Kept Law Review Balanced

June 23, 2008 / 12:15 PM
/ The Politico

Barack Obama's election as the first black president of the Harvard Law Review in 1990 gave him his first moment of national fame, a powerful intellectual credential and a sweet book deal. It was also his first electoral victory, won in part by convincing the conservative minority of law students that he would treat them fairly.

While the title and election have become well-known parts of Obama's personal story, the substance of his actual work on the Review, where he spent at least 50 hours a week, has received little attention.

Obama might have had it right back when he was running the journal, where he reportedly ended minor disputes with the words, "Just remember, folks: Nobody reads it."

The eight dense volumes produced during his time in charge there — 2,083 pages in all — show the Review to have been a decidedly liberal institution, albeit one in transition as its focus on race and gender was contested by liberals and conservatives alike. Under his tenure, the Review published calls to expand the powers of women, African-Americans and the elderly to sue for discrimination.

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But Obama, who this March referred to "identity politics" as "an enormous distraction," was not so easily pinned down. He published a searing attack on affirmative action, written by a former Reagan administration official. And when, in an unusual move, he selected a young woman from a non-Ivy League law school to fill one of the Review’s most prestigious slots, she produced an essay focused on individual responsibilities as much as on liberties, criticizing both conservative judges and feminist scholars.

"I was very surprised and honored to receive the invitation, of course, as I was teaching at Maryland Law School at the time, and the Foreword typically is extended to more established scholars at ‘top’ law schools," Robin West, now a professor and associate dean at Georgetown Law Center, wrote in an e-mail to Politico. While other articles are selected by the Review's editors as a group, the Foreword is solicited by a smaller band led by the Review president.

West worked closely with Obama on her piece, she said, remembering him as gracious and helpful, if a bit polite, even formal: "He would always ask first about my baby," she recalled.

If the editor and author — a black man and a woman — were an unconventional team for the Review, however, West's article challenged the then-prevailing wisdom in a different way, taking as its touchstone the work of Czech freedom fighter Vaclav Havel and the anti-Communist revolutions in Eastern Europe that were then still under way. Havel had written that the citizen’s sense of responsibility — not just of individual rights — was essential to political liberty, and West applied that critique to contemporary liberalism to argue that goals such as tolerance and diversity might in fact be "weakened, not strengthened, by taking rights so 'super-seriously' that we come to stop examining our sense of responsibility."

Obama "clearly agreed with me at the time that a shift in constitutional thinking from a rights-based discourse to one that centered [on] responsibility and duties ... would be a good thing," West told Politico. "Partly because of those conversations, I don't find it surprising at all that Sen. Obama's speeches are often marked by calls to spark a sense of responsibility, rather than a sense of grievance."

That classically liberal approach was hardly the mainstream of legal academia at the time. Under Obama's guidance, the Review underwent a period of relative peace after the turbulent 1970s and '80s, when the publication — like the institution itself — attempted to balance its inherent elitism and meritocracy with some semblance of openness and multiculturalism.

“He was as much a traditionalist as anything,rdquo; recalled Susan Estrich, the USC School of Law professor who served as Michael Dukakis’ campaign manager in 1988 — and who broke ground as the first female president of the Harvard Law Review 14 years before Obama took the reins. “It was a big deal that he got the presidency. He was selected because of merit, and he believed in the institution and its history. There are some years [at the Review] that are radical and others that are traditional."

Eleanor Kerlow, the author of "Poisoned Ivy: How Egos, Ideology and Power Politics Almost Ruined Harvard Law School," depicted Obama's tenure as a calm before the storm. “I never heard anything negative about him” while researching her book, Kerlow told Politico. “Despite the political and ideological infighting, he maneuvered his way around pretty well.”

Her book is set in the following year, when Obama’s successor circulated a parody of an article by a feminist legal scholar who had been murdered, igniting a crippling ideological power struggle at the Review.

In Obama's time, as it is today, the Harvard Law Review was one of the most important and distinguished legal publications in the world. Founded in 1887, it is the rare self-supporting legal publication compiled and edited completely by students, typically those attending their second and third year at the prestigious school.

After winning a spot on the Review, Obama beat out 18 other contenders to become the first African-American president in the then-103-year history of the Review, and his duties included leading discussions and debates to determine what to print from the mountain of submissions from judges, scholars and authors from across the country, supervising the thorough editing of each issue's contents and giving every article what's known as a "P-read" once it was finally considered ready for publication.

Once a piece is set, the president also sends a letter or fax and makes a follow-up phone call to each author. Federal Judge Michael W. McConnell, who was nominated by President Bush and has frequently been mentioned as one of Bush’s potential Supreme Court nominees, recalls receiving one such letter and call in early 1990 for his article “The Origins and Historical Understanding of Free Exercise of Religion.”

McConnell told Politico, “A frequent problem with student editors is that they try to turn an article into something they want it to be. It was striking that Obama didn’t do that. He tried to make it better from my point of view.” McConnell was impressed enough to urge the University of Chicago Law School to seek Obama out as an academic prospect.

Yale professor Vicki Schultz, then an assistant professor at the University of Wisconsin law school, wrote a lengthy article for the June 1990 issue, titled “Telling Stories About Women and Work,” which compared how the courts handled sexual and racial discrimination cases. She was concerned that “some African-American scholars might be offended by the comparison” but says Obama was “incredibly reassuring and smart and nonideological” about the way he approached the piece.

One thing Obama did not do while with the review was publish any of his own work. Campaign spokesman Ben LaBolt said Obama didn't write any articles for the Review, though his two semesters at the helm did produce a wide range of edited case analyses and unsigned “notes” from Harvard students.

Estrich believes that Obama must have had something published that year, even if his campaign says otherwise. “They probably don’t want [to] have you [reporters] going back” to examine the Review.

(While the Review's contents are protected by U.S. copyright law and aren’t available for free online, Politico is providing all the front covers — which include each issue's table of contents &mdas; and a representative masthead from Obama's term as president.)

In recent months, Obama's stewardship of the Review has generated a small dust-up in the blogosphere, with some critics insisting that "Obama's Vol. 104 is the least-cited volume of the Harvard Law Review in the last 20 years." The claim has methodological problems, however, including the fact that Obama oversaw only the first four issues of that volume. Review veterans said he would have an increasing influence — as well as a final read — over the latter half of Volume 103, then a diminishing influence over the second half of Volume 104, produced after he left the presidency.

Moreover, with the exception of the Foreword, Review articles are selected by a committee of editors, with the president merely the first among equals. Still, the substance of the Review offers a glimpse at the environment in which Obama came to the law, and the eight issues that Obama presided over have enough material to keep the blogosphere busy for months. Among the more interesting pieces:

• March 1990 — This issue, the first of Obama’s presidency, has an article by University of Florida associate law professor Anthony Cook on "the reconstructive theology of Dr. Martin Luther King Jr." The article ends with a theme that would later emerge in Obama's speeches: "With such mutual respect and openness to each others' pain, suffering and faith, we must work out more fully and struggle towards King's ideal of the Beloved Community and thereby hew from our mountain of despair a stone of hope."

• April 1990 — An unbylined note titled "Rethinking (M)otherhood: Feminist Theory and State Regulation of Pregnancy" asks whether the state should consider the potential for endangering the fetus when pregnant women abuse drugs. The author suggests that the problem's positioning as a conflict between fetal and maternal rights is "both illegitimate and counterproductive" and concludes that policies should to be recast to expand, rather than restrict, women's reproductive rights.

• June 1990 — This issue included five responses to “Racial Critiques of Legal Academia,” a highly controversial article published in the Review before Obama became its president. The article — written by Randall Kennedy, a black professor at Harvard Law — argued against the idea that legal scholars of color have a unique and at times uniquely valuable voice on issues related to race.

The first entry in the colloquy is prefaced by a quote from performer and civil rights activist Paul Robeson’s 1934 article “The Culture of the Negro” — "The white man has made a fetish of intellect and worships the god of thought; the negro feels rather than thinks" — and several quotes from the now largely forgotten but once highly controversial racial provocateur Frantz Fanon, among them: “If the white man challenges my humanity, I will impose my whole weight as a man on his life and show him that I am not the ‘sho’ good eatin'’ that he persists in imagining.”

• November 1990 — This issue included perhaps the most conservative piece of Obama's tenure, in which Ronald Reagan’s former Solicitor General Charles Fried attacked race-based affirmative action, calling it "racial balkanization" that would "impoverish the human race." The implications of group rights, he wrote, are "sinister."

• February 1991 — Obama's last issue contains one of its most sharply liberal pieces, a study of race and gender in car sales, which, the editors say in an equally liberal introduction, provides "evidence that seriously challenge faith in the ability of competitive market forces to eliminate racial and gender discrimination in other markets" and calls for more governent action.

In the end, though, Obama's time on the review mirrored other aspects of his life. Even in the staunchly liberal milieus in which he has spent his entire adult life, Obama has managed to lead without leaving a clear ideological stamp, and to respect — and even at times to embrace — opposing views. To his critics, that's a sign of a lack of core beliefs. To his admirers, it's the root of his appeal.

"To understand what someone else is trying to say isn't just an editorial skill," said McConnell. "It's a life skill.”